The Case against the Thirteenth Amendment

Indian PM Rajiv Gandhi and SL President JRJ sign Indo - Lanka peace accord. The agreement resulted in the 13th Amendment to the Constitution

Territorial Devolution and Ethnic Reconciliation

As I have shown elsewhere in detail, arguments in support province-based devolution in Sri Lanka based on federal experiences of the community of nation-states are also, for the most part, extremely tenuous. At the time romantic SWRD Bandaranaike extolled the virtues of federalism there were only a few multi-ethnic democracies with that system of government. The United States – often hailed as the model federation ? was yet to have universal adult franchise, and (as only a few in Sri Lanka would be aware) one of the compulsory requirements it had for any part of the country to be accorded recognition as a state was that it should have a white majority. Almost the whole of Canada was a snow- or forest-clad wilderness with a thin scatter of settlements dominated, for the most part, by Anglophone migrants, with the Francophone province of Quebec having uneasy links with the rest of the federation. The large federations in South America were under autocratic rule, as was the Soviet Union and Germany. The only exception at that time was the confederacy of Switzerland (smaller than Sri Lanka) which was, in fact, a lose association of scattered and, often, physically isolated, communities, spread over mountainous terrain, each of which had jealously guarded its tradition of independence and self-government over several centuries.

Devolution in conflict or post-conflict situations as a modality of either conflict resolution or post-conflict reconciliation has, barring a few experiences, been an unmitigated failure as shown in several highly authoritative world-wide surveys, a few extracts from which are cited below:

"Even if power-sharing can avert potential ethnic conflicts or dampen mild ones, our concern here is whether it can bring peace under the conditions of intense violence and extreme ethnic mobilisation that are likely to motivate intervention. The answer is no"… The core reason why power-sharing cannot resolve ethnic civil wars is that it is inherently voluntaristic; it requires conscious decisions by elites to cooperate to avoid ethnic strife. Under conditions of hypernationalist mobilisation and real security threats, group leaders are unlikely to be receptive to compromise, and even if they are, they cannot act without being discredited and replaced by harder-line rivals". KAUFMANN (1997): 265-304

"Proposals for devolution abound, but more often than not devolution agreements are difficult to reach, and once reached, soon abort. Most such agreements are concluded against a background of secessionist warfare or terrorist violence. Where central authority is secure, as in India, the appropriate decisions can be made and implemented by the centre. But, where the very question is how far the writ of the centre will run, devolution is a matter of bilateral agreement, and an enduring agreement is an elusive thing". HOROWITZ (1985): 622-3

"(I)n ethnically divided societies after intense conflicts they (i.e. power-sharing institutions) typically have a set of unintended but perverse consequences. They empower ethnic elites from previously warring groups, create incentives for these elites to press radical demands once peace is in place, and lower the costs for these elites to escalate conflict in ways that threaten democracy and peace. These dangers can be avoided when power-sharing institutions operate under very special conditions such as a political culture of accommodation, economic prosperity and equality, demographic stability, strong governmental institutions, stable hierarchical relations within ethnic communities, and a supportive international environment. Yet those conditions are unlikely to be present or difficult to sustain after severe conflicts such as civil wars." ROTHCHILD Donald & ROEDER Philip G, 2005: 29.

These findings are of particular salience to an understanding of the Sri Lankan experiences during the various peace efforts that punctuated the Eelam Wars and some of the post-war demands made by certain leaders of our minority communities, regardless of the legitimacy of their leadership claims. On the post-war situation, we note that, for one thing, some of them have made no secret of their commitment to secessionism. For another, such leaders seem to receive financial support and other tangible benefits from external forces that have continued to engineer the war against Sri Lanka, diverting the massive resources they had channelled earlier for procurement of weaponry, to subversion and destabilisation of the country by other means. It would certainly not require much imagination to surmise what these forces could and would do with a partially autonomous Northern Provincial Council.

Provincial Devolution and the Vulnerability of the North

I have all along adhered to the view that it was the post-independence marginalisation of the North and parts of the East from the economic mainstreams of Sri Lanka and the resulting unrest among the more depressed segments their youth that facilitated large-scale mobilisation for the secessionist war waged by the LTTE. The circumstances that alienated the youth in these areas persist, the post-war reconstruction efforts notwithstanding.

In the case of the Northern Province, ‘reconstruction’, if it means only the restoration of what was destroyed in the course of the war, would be far from adequate to eliminate youth alienation -one of the main impulses of political violence and rebellion. In any case, the restoration of pre-war conditions in Jaffna would not be achievable for the reason that at least 300,000 persons, drawn largely from the more affluent segments of the population have emigrated from the area. What would hence be needed is a concerted attempt to bring about a major structural transformation of the northern and eastern regional economy. The promotion of village tank-based paddy cultivation in the Vanni interior is, of course, the surest way of perpetuating abject poverty and the alienation of youth there. Nor should it be imagined that a scatter of ill-conceived international airports, cricket stadia and film villages could serve as a realistic way of bringing about that transformation. This is altogether another topic. Sorry to have digressed.

The East, especially its maritime fringe, has a terrestrial resource base which, if properly harnessed, could effectively annex even the more depressed localities in that part of the country into the buoyant segments of our macro-economy. Much of the North, in contrast, is not richly endowed with land-based resources. But it does have a marine resource base which might assume enormous significance, but in the harnessing of which Sri Lanka is likely to encounter stiff competition from India. What is more, as in cricket, that competition will not be enacted on a level playing field. These are circumstances that are likely to make the North far more vulnerable from the viewpoint of Sri Lanka’s national security than it has ever been, before or during the war.

In addition, there are other considerations that must necessarily be accorded utmost priority in the formulation of constitutional policy – especially on the issue of whether Sri Lanka should persist with an arrangement involving province-based devolution, and, in the short run, proceeding with elections to the Northern Provincial Council, even if the present government has the assurance of a Council so established being committed to the concept of a unitary Sri Lanka. The changing political conditions in India should loom large among the additional considerations I refer to. The overarching dominance of the All-India National Congress Party over India is very distinctly a thing of the past. The more recent norm is the formation of fragile coalition governments at the centre. Even with the substantial majority which the ‘Congress’ secured at the last Lok Sabha elections, we saw how Delhi’s relations with Bangladesh had to be decisively adjusted to please Mamata Banerjee of West Bengal, how strongly Indo-Sri Lanka relations have been affected by electoral considerations in Tamil Nadu, and how Indo-Pakistan relations are constantly and adversely influenced by the political forces in the ‘saffron belt’ of Western India.

Rights apportioned out on the basis of the Indo-Lanka maritime boundary agreement of 1966 has all along been frequently violated, making Palk Strait an arena of cross-border clandestine movement of people and goods between the two countries at the time the LTTE held sway over the northern plains of Sri Lanka. Poaching by Tamil Nadu fishermen in the resource-rich Wedge Bank off Jaffna peninsula will also remain virtually unrestricted, causing spells of friction between the two countries. The related problems are likely to intensify when India’s ‘Sethusamudram Shipping Canal Project’ reaches completion, and if exploitable petroleum and/or natural gas reserves are discovered beneath the Gulf of Mannar seabed. Needless to stress, all these considerations are germane to the issue of the nature of control which the central government of Sri Lanka should continue to have over the northern parts of the country.

External Compulsions

One of the main elements of external intervention in the internal affairs of post-war Sri Lanka is the continuing pressure being brought to bear on the government to adopt a system of province-based devolution as one of the instrumentalities of ethnic reconciliation. It is, indeed, unfortunate that the LLRC itself has made a similar prescription. There is no evidence in the voluminous report produced by the Commission that it made any attempt to draw ‘lessons’ relevant to the subject of territorial devolution and sub-national inter-group conflict from our own experiences, leave alone the abundance of international experiences. Its recommendation, however, has had the effect of legitimising the demand made by the global west which, in earlier times, was so obviously based on a nakedly superficial, local NGO-nurtured, understanding of Sri Lankan affairs.

Admittedly this pressure is difficult to circumvent or surmount, given Sri Lanka’s dependence on aid and trade. Yet, one cannot overstate the importance of our country pursuing an independently charted course in matters pertaining to internal and external affairs. It is a vital necessity that could be achieved by the present regime which, despite its shortcomings, has demonstrated extraordinary strength in acting on the basis of its own convictions while continuing to enjoy an unprecedented level of popular support. If Sri Lanka succumbs now, it is unlikely that the prevailing circumstances would recur in the foreseeable future.

It must also be remembered that the two thematic concerns of the present external interventions specifically focused on post-war affairs – ‘reconciliation’ and ‘accountability’ – are not interrelated in the sense that whatever progress Sri Lanka makes towards reconciliation (there could be no denial that tangible progress has already been made), the demand for accountability (for ‘war crimes’ and ‘crimes against humanity’ allegedly committed by the government during the concluding phase of the war) will remain, probably with increasing vehemence. This, I think, is primarily because the segments of the Tamil diaspora that has continued to be committed to the mission of dismantling the Sri Lankan nation-state, and has thus provided the main impulses for external intervention, will persist with their desire to make martyrs of the criminals who perished in mid-May 2009 and vent their fury at those who brought about that debacle, but remain hostile to any possible ‘reconciliation’ outcome of a future Northern Provincial Council. To them and their allies within and outside Sri Lanka – the latter includes governments hostile to the Rajapaksa regime that have already established an abnormal ‘diplomatic’ tradition of maintaining direct contact with elements pledged to destabilise the elected government of the country – an NPC with even a limited range of powers of government will serve as an ideal launching pad for a resurgent armed struggle for Eelam with greater external sponsorship and support than the earlier one.